After
inspecting the Grand Jury minutes, the Court finds that the
evidence before the Grand Jury was legally sufficient in all
respects to establish each count and that the instructions to
the Grand Jury were proper. Defendant's motion to release
the Grand Jury minutes is denied since release of the Grand
Jury minutes is not necessary to assist the Court in
determining defendant's motion, and, in any event, any
benefit to such release at this juncture in the proceedings
is outweighed by the need to preserve grand jury secrecy.
See CPL 210.30(3); 190.25(4)(a).

For the
following reasons, defendant's motion to dismiss the
charges against him on the ground that the prosecution of
these charges is barred by the constitutional and statutory
proscriptions against double jeopardy is denied.

On July
18, 2016, an indictment was filed by the Grand Jury of Bronx
County charging defendant and five others with Criminal Sale
of a Firearm in the First Degree, Criminal Possession of a
Firearm, Conspiracy in the Fourth Degree and related charges.
The evidence presented to the Grand Jury established that, on
various occasions between January 2016 and May 2016,
defendant purchased 25 firearms in Pennsylvania that were
transported to the Bronx by a co-conspirator and sold to an
undercover police officer by other co-conspirators.

On June
21, 2016, an indictment was filed in the United States
District Court for the Middle District of Pennsylvania,
charging solely defendant with five counts of knowingly
making a false and fictitious statement in the acquisition of
a firearm in violation of 18 U.S.C. §§ 922(a)(6)
and 924(a)(2). These counts charged defendant with making
false statements when he purchased 14 of the guns that were
sold to the undercover in the Bronx and are the subject of 31
of the 53 counts defendant is charged with in the instant
Bronx indictment. [1] On December 14, 2016, defendant pled
guilty to all five counts charged in the federal indictment,
and, on September 14, 2017, defendant was sentenced to five
concurrent terms of 32 months incarceration. [2]

Initially,
defendant's constitutional double jeopardy claim that the
instant prosecution is barred by the prior federal
prosecution is without merit. First, here, the
Blockburger test (284 U.S. 299, 304 (1932)) to
determine whether a subsequent prosecution violates the Fifth
or Fourteenth Amendment double jeopardy prohibition for
sequential prosecutions for the same offense is satisfied
because each of the offenses charged in the state indictment
contains an element which the federal charges do not. Second,
under the dual sovereignties doctrine, the instant
prosecution is not barred because successive federal and
state prosecutions, even when based upon the same transaction
or conduct, do not offend the double jeopardy clause. See
Bartkus v. Illinois, 359 U.S. 121 (1959); Matter of
Polito v. Walsh, 8 N.Y.3d 683 (2007).

Similarly,
defendant's statutory double jeopardy claim is
unavailing. Initially, with respect to the 11 guns that are
the basis for charges solely in the state indictment, C.P.L.
§ 40.20(2), which bars successive prosecutions for two
offenses based upon the same act or criminal transaction, is
inapplicable.

With
respect to the 14 guns that are the basis for charges
contained in both the state and federal indictments, two
exceptions to New York's statutory proscription against
successive prosecutions for two offenses based upon the same
act or criminal transaction codified in C.P.L. §
40.20(2)(a) and (b) are applicable. C.P.L. § 40.20(2)
states that a person may not be separately prosecuted for two
offenses based upon the same act or criminal transaction
unless: (a) the offenses as defined have substantially
different elements and the acts establishing one offense are
in the main clearly distinguishable from those establishing
the other; or (b) each of the offenses as defined contains an
element which is not an element of the other, and the
statutory provisions defining such offenses are designed to
prevent very different kinds of harm or evil.

Here,
the state and federal offenses charged have substantially
different elements, the acts establishing the federal
offenses are clearly distinguishable from the acts
establishing the state offenses, and the statutory provisions
defining the state and federal offenses are designed to
prevent very different kinds of harm or evil. Thus, there
exists no statutory double jeopardy bar to the instant state
prosecution by virtue of defendant's federal plea.
See C.P.L. § 40.20(2)(a) and (b); People v.
Bryant, 92 N.Y.2d 216 (1998)(sequential state
prosecution for attempted murder of a police officer and
criminal possession of a defaced firearm which were based on
the same criminal transaction underlying the defendant's
federal conviction for bank robbery and using and possessing
firearms during a crime of violence not barred as both prongs
of C.P.L. § 40.20(2)(b) satisfied); People v.
Biear, 119 A.D.3d 599 (2d Dept. 2014)(state prosecution
for falsely reporting an incident not barred by federal
prosecution for mail fraud as both crimes have different
elements and purposes and thus C.P.L. § 40.20(2)(b)
satisfied); People v. Mabry, 101 A.D.2d 961 (3d
Dept. 1984)(state prosecution for forgery and criminal
possession of a forged instrument not barred by federal
conviction for theft of mail and mail fraud as crimes have
different elements and acts and therefore C.P.L. 40.20(2)(a)
satisfied); People v. Austin, 14 Misc.3d 295 (Sup.
Ct. NY Co. 2006)(Uviller, J.)(state prosecution for attempted
robbery in the first degree not barred by federal conviction
for weapons possession where same weapon used in robbery as
state and federal offenses contain different elements and
address different harms or evils and thus both C.P.L §
40.20(2)(a) and (b) applied).

Equally
unavailing is defendant's double jeopardy claim that if
he is convicted on the instant charges he would be punished
twice for the same offense. As discussed above, under both
the Blockburger test and dual sovereignties
doctrine, there is no constitutional basis to bar the state
prosecution. However, that does not end the double jeopardy
analysis. Because some of the state charges are based on the
same weapons as the federal charges, and because
defendant's federal sentence was enhanced based upon
those weapons, in order to avoid running afoul of the double
jeopardy multiple punishment bar, and due to the Court's
concern for fundamental fairness, the Court will exercise its
discretion and give defendant credit, if convicted, for the
time he has served on the federal conviction. See North
Carolina v. Pearce, 395 U.S. 711, 718 (1969)(Double
Jeopardy Clause's bar to multiple punishment for the same
offense is violated when a defendant is not given credit for
time served when sentence imposed upon a new conviction for
the same offense). Thus, if defendant is convicted, the Court
will run any sentence of incarceration on the instant charges
concurrently to defendant's federal sentence.
[3]See PL §§ 70.25(4), (2).

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